A part-time instructor of Palestinian descent was fired after school administrators in Chicago determined that she violated the college’s anti-harassment policy by singling out and teasing a Jewish student in the class, lacks a race or national origin discrimination claim. (Smiley v. Columbia Coll. Chicago, 7th Cir., No. 10-3747, 4/30/13).
The Jewish student made a complaint that Prof. Suriya Smiley was targeting him, and that he had been singled out in class in the following ways:
- On September 8th, 2009, in my first class with Sue Smiley, while doing attendance. She came to my name and said. “You’re a Jew” right? I asked Sue, “Why did you ask me that?” She said, “I could tell by your nose and last name. Then she said, “ I am Arab.”
- On October 27th, Sue told me directly she went to Shlotsky’s deli with friends over the weekend. She said her friends ordered food, and told me, “Damn those “Jews” know some good food.”
- On November 3rd, Sue asked Joe and me (I forgot his last name) to look at a cd on my computer. The cd happened to contain explicit pictures of her revealing her body.
- On November 10th, Sue asked me if I knew a recent graduate. I said “no” She said, “I thought all JEWS knew everyone, She came to where I was sitting and asked if she could take a picture of me. I said no. She replied with, “Are you too religious of a JEW to take a picture?” Then at the end of the class she came very close to my face and smirked and said, “bye sweetie.” Administrators at Columbia College Chicago began investigating Surinam Smiley for potential violation of the school’s anti-discrimination and harassment policy after the above complaint was made.
Smiley’s defense was that there was evidence that the college treated non-Arab and non-Palestinian instructors accused of violating the policy in a more favorable manner. Smiley maintains that the school’s investigation was deficient and that it evidences pretext. The Court held that pretext does not exist if the decision-maker honestly believed the nondiscriminatory reason for its employment action. Therefore, the college’s best business practices prevail and Ms. Smiley is no longer a teacher at the college.
The Jewish student began his complaint by stating that he was extremely uncomfortable in class and did not want to return, stating he felt singled out and isolated in class for being Jewish. The court agreed! It is distressing that a teacher, who models behavior for students, would target someone based in their being Jewish. Pretext is not the issue. The issue is whether plaintiff can show that, with reasonable accommodations, he could have performed the essential functions of the job.
Perhaps most useful is the court’s determination that when assessing whether an employee can perform the essential job functions, a fact intensive analysis should take place due to the unique nature of each job.
